Bi Jian You v. Holder

09-3100-ag You v. Holder BIA A073 050 842 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 30 th day of September, two thousand ten. 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 JON O. NEWMAN, 10 RICHARD C. WESLEY, 11 Circuit Judges. 12 ______________________________________ 13 14 BI JIAN YOU, 15 Petitioner, 16 09-3100-ag 17 v. NAC 18 19 ERIC H. HOLDER, JR., 20 Respondent. 21 ______________________________________ 22 23 FOR PETITIONER: Tina Y. Howe, New York, New York 24 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General, Civil Division; Michelle 28 Gordon Latour, Assistant Director; 29 Cindy S. Ferrier, Senior Litigation 30 Counsel, Office of Immigration 31 Litigation, Civil Division, United 32 States Department of Justice, 33 Washington, D.C. 34 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DISMISSED in part and DENIED in part. 5 Bi Jian You, a native and citizen of the People’s 6 Republic of China, seeks review of a June 26, 2009, order of 7 the BIA denying his motion to reopen. In re Bi Jian You, 8 No. A073 050 842 (B.I.A. June 26, 2009). We assume the 9 parties’ familiarity with the underlying facts and 10 procedural history of the case. 11 We review the BIA’s denial of You’s motion to reopen 12 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 13 (2d Cir. 2006). An alien is limited to a single motion to 14 reopen that is filed within 90 days of the final 15 administrative decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. 16 § 1003.2(c)(2). This is You’s third motion to reopen, filed 17 more than eight years after the BIA’s removal order. We 18 find no abuse of discretion. 19 You’s third motion sought reopening to apply for 20 adjustment of status; however, eligibility for adjustment of 21 status is not an exception to the applicable time limitation 22 on motions to reopen. See 8 U.S.C. § 1229a(c)(7)(C); 23 8 C.F.R. § 1003.2(c)(3)(ii); see also Matter of Yauri, 25 I. 2 1 & N. Dec. 103, 105 (BIA 2009) (emphasizing “that untimely 2 motions to reopen to pursue an application for adjustment of 3 status . . . do not fall within any of the statutory or 4 regulatory exceptions to the time limits for motions to 5 reopen before the Board”). Accordingly, You was implicitly 6 invoking the BIA’s authority to reopen his proceedings sua 7 sponte. See Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 8 2009). The BIA’s determination as to whether it will 9 exercise its sua sponte authority is entirely discretionary 10 and thus beyond the scope of our jurisdiction. See Ali, 448 11 F.3d at 518. Although we retain jurisdiction to review the 12 BIA’s finding that an alien is ineligible for adjustment of 13 status, see Mahmood, 570 F.3d at 469; Aslam v. Mukasey, 537 14 F.3d 110, 115 (2d Cir. 2008), there is no indication that 15 the BIA misperceived the law in declining to reopen You’s 16 proceedings. To the contrary, the BIA denied You’s time- 17 and-number-barred motion because it found that a favorable 18 exercise of its discretion was not warranted, rather than 19 because it found You ineligible to adjust status. See Ali, 20 448 F.3d at 517. 21 Finally, we lack jurisdiction to consider You’s due 22 process challenge to the BIA’s 2003 order, because he failed 23 to file a petition for review of that order with this Court. 3 1 See 8 U.S.C. § 1252(a)(5) (“[A] petition for review filed 2 with an appropriate court of appeals . . . shall be the sole 3 and exclusive means for judicial review of an order of 4 removal . . . .”); see also Stone v. INS, 514 U.S. 386, 405- 5 06 (1995) (providing that a petition for review challenges 6 only the order(s) from which it was timely filed). 7 For the foregoing reasons, the petition for review is 8 DISMISSED in part and DENIED in part. As we have completed 9 our review, any pending motion for a stay of removal in this 10 petition is DISMISSED as moot. Any pending request for oral 11 argument in this petition is DENIED in accordance with 12 Federal Rule of Appellate Procedure 34(a)(2), and Second 13 Circuit Local Rule 34.1(b). 14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk 16 17 4